54 N.Y. 586 | NY | 1874
The contract between these parties was effected by correspondence, from which their intention is to be collected. It began by a letter from the plaintiffs, who style themselves manufacturers of all descriptions of steel, addressed to the defendant, The Morris Ax and Tool Co. The plaintiffs say: "In the hope of opening a trade with you, we quote you ten tons of best ax cast-steel, which we will warrant equal in quality to any brand of English steel, at seventeen and a half cents per pound, net cash here. We hope you may be induced to give this proposition your careful consideration; certainly the great difference between the price of English steel and ours would justify a careful test of the latter." To this letter, dated April 25, 1868, the defendant replied under date of July thirty-first. Referring to the plaintiffs' letter, they say: "We are going to try and use your steel; that already sent works very well, and you may enter our order for ten tons," on terms which they state. To this the plaintiffs, on the third of August, answered, proposing other terms as to price, and soliciting an order from defendant and closing with a postscript, "we will warrant ours to be equal in quality to Jessup's or other standard brands." In answer to this letter, under date of August sixth, the defendant accepts the plaintiffs' offer, saying, "you may ship us the steel as you propose."
Upon this correspondence it may be observed, in the first place, that the test of their steel which the plaintiffs suggested, appears to have been made by the defendants, and that finding it to work very well, as they say, they entered into the contract for the larger amount of ten tons.
In examining the questions principally debated in respect to this contract, it will be convenient to consider first *590
the import of the language employed by the parties, and then to see whether any rule of law interferes to prevent full force being given to the agreement which they entered into. The plaintiffs proposed to sell to the defendant ten tons of steel of their manufacture, which they qualify as best ax cast-steel, and which they say they will warrant equal in quality to any brand of English steel. This language imports an express warranty in respect to the quality of the steel to be delivered. The contract defines the quality, for it is ax cast-steel which is spoken of, and that, in this connection, means steel for the manufacture of axes. Such is the fair import of the language of the plaintiffs in inviting the defendant to become a purchaser. This was the basis on which the plaintiffs' proposition was finally accepted by the defendant, and it is, in my opinion, to be deemed to have received this engagement from the plaintiffs simultaneously with the delivery of the property. Obviously, mere inspection could not determine whether the steel delivered was the best ax cast-steel and equal in quality to any English brand. In order, therefore, to any substantial protection of its rights, the defendant was compelled to rely upon the warranty. An express warranty, accompanying the delivery of personal property upon an executory contract, is not unlawful, nor against public policy, and the question must be, therefore, one of interpretation, whether in fact such a contract has been entered into. The case of Reed v. Randall (
If the foregoing observations are well founded, then the plaintiffs were not entitled, as matter of law, to a judgment in their favor, either upon the ground that no warranty was proved, or because the defendant had not offered to rescind the contract and return the goods; nor upon the ground that any defect in the steel was waived by the use of it by the defendant. In the view we take of the contract, the defendant, in using the steel in its manufacture of axes, was pursuing the course with a view to which the warranty was given. It had made the preliminary test, as suggested in the plaintiffs' first letter, and it had resulted satisfactorily. Tests were continued during the process of manufacture, and there is no preponderance of proof, to say the least, that the defendant did not communicate to *592 the plaintiffs the unsatisfactory character of the steel as soon as it became satisfied that it was defective. Whether the defendant used reasonable care and diligence to discover the defect in the steel, was, upon the evidence, a question of fact for the referee, and the plaintiffs were, therefore, not entitled to have it determined in their favor as matter of law.
The rule of damages applied by the referee was correct. He found that the defendant, relying on the plaintiffs' warranty, used the steel in the manufacture of 2,000 dozen axes; that it was not of the quality warranted, but inferior, and that by reason thereof the axes were of a less value to the extent of one and a half dollars a dozen than they would have been if the steel had been equal in quality to the best brands of English steel. The steel having been bought to manufacture into axes, and the warranty having been of its quality for that purpose, and its having been employed by the vendee in the making of axes, these damages seem to be the direct and immediate consequence of the defective quality of the steel. If the parties considered, at all, the consequences which would flow from defects in the quality of the steel, they could not have failed to see that the result would be that the defendant would expend its time, labor and money in making axes, which, when made, would be worth less than they would have been if made of material equal in quality to the requirements of the warranty. The consequent damages could not be less than the difference in value between the articles made of the defective material and similar articles made of material equal to the warranty, and there is consequently no hardship, but an obvious justice, in the allowance of such damages. The principles established and illustrated in Leonard
v. N.Y., etc., Telegraph Co. (
There remain to be considered some questions in respect to the admission of evidence. A witness was asked by the defendant, "How much less those 600 dozen axes were worth than they would have been if manufactured of English steel?" This was objected to by the plaintiffs as incompetent; not the proper method of proof; the market value is the test. It was admitted, and the plaintiffs excepted. As the objection was worded, it seems to me to call attention only to the position that the question was faulty in not asking for the market value. In that aspect, the case ofMuller v. Eno (
Another question objected to was this: "How much less were the axes returned on your hands, made out of this steel, worth than they would have been if the steel had been as it was warranted to be?" I do not see anything objectionable in designating a part of these axes as those which had been returned. That mode of designation did not call for any consideration of the damages they had suffered or the expenses they had caused before they were returned. It had appeared that some 600 dozen had been returned, and this phrase merely called the attention of the witness to those particular axes.
Another question was this: "Did there appear to be any difference as to the number of defective axes manufactured from this steel and best English steel, made by the same workmen, during the same period, in the same manner, at the manufactory of the defendant, and made otherwise from the same material?" When this question was asked it certainly did not appear that the same treatment was not appropriate to the English and to the American steel. If it was, then the question was calculated to elicit a material fact in estimating the relative quality of the steel in question. If it yielded more defective axes than the English steel, the argument, that it was therefore inferior to the English, was certainly a fair one.
The other objections to the admission of evidence do not seem to require any special attention.
After a careful examination I do not find any error, and am of opinion that the judgment should be affirmed.
All concur.
Judgment affirmed. *595